Planned Alberta Bill of Rights amendment prompts criticism from legal expert

Alberta's plan to introduce legislation reaffirming the right to medical bodily autonomy this fall is being met with criticism from a legal expert who argues the right is already enshrined in the Canadian Charter of Rights and Freedoms. 

Premier Danielle Smith announced plans to amend the Alberta Bill of Rights in a video posted to social media on Tuesday morning.

When answering questions from reporters on Wednesday, she pointed to the COVID-19 Pandemic and vaccine mandates for government workers who were subsequently fired from their jobs for refusing to take the vaccine.

Despite the workers losing their jobs due to government requirements, they still had the bodily autonomy to make the conscious decision not to receive the vaccination.

"We've now had two judgments against us," said Smith. "It was grieved by the nurse's union and grieved by the Alberta union of provincial employees, and we lost, and we had to give compensation to the employees that were let go from their job because they refused a vaccine."

"Those would be two examples that I don't want to see happen again."

Smith admits that the commitment to reaffirm bodily autonomy was based on recommendations from the Public Health Emergencies Governance Review Panel's final report.

Preston Manning was the panel chair.

"He had a number of recommendations about how to improve things through the Alberta Bill of Rights, and one of them was to give more recognition to a person's right to make their own medical choices. So yes, I say that provision comes directly from a commitment I made," Smith said. 

Alberta Health Minister Adriana LaGrange also referred to the report as part of what she calls "extensive engagement" throughout the pandemic.

"Albertans want to have the rights that they already have enshrined to be even further strengthened, and so that's what this bill will come forward with," she said.

When pressed further if she could give an example of bodily autonomy right infringements, LaGrange dodged the question.

"Again, I would rather just wait till we have the bill in front of you, and then you can actually see the wording in the bill, because you will see it was very much about strengthening the overall rights and freedoms," she added.

‘A signal to the anti-vax base'

Lorian Hardcastle, associate professor in the faculty of law in the Cumming School of Medicine at the University of Calgary, criticized the province for making vague statements.

"We already have that right under the Charter," Hardcastle said. "The right to life, liberty and security of the person, already protects medical autonomy."

"It isn't clear to me what the government is trying to accomplish here. If it is just a right to make medical choices, or if this instead is broader, and it could limit the ability of employers to acquire vaccines of health-care workers or limit the ability of the government to put in place public health measures."

Hardcastle went on to say that the LaGrange's "inability" to provide examples of the right being violated is telling.

"This is more of a political decision than one related to the protection of health-care rights itself.

"The government is not actually creating new legal rights, but rather sending a signal to the anti-vax members of their base who feel like they were grieved by what went on during Covid," she said.

"The concern, though, is what would happen in a future public health emergency? If this right is construed broadly in a future public health emergency, might long-term care facilities not be able to require vaccines? Might other employers not be able to require vaccines? Might the government actually tie its own hands in a public health emergency to put in place public health measures that are necessary at the time?"

Hardcastle says another issue also lies in the fact that the province plans to introduce legislation that can compel treatment of individuals experiencing addictions.

"So, it isn't clear how those two pieces of legislation will agree with one another, and potentially the 'compassionate care legislation,' as they're calling it, that could be subject to a charter challenge, but it actually could now potentially be subject to a challenge under the province's own Bill of Rights."